Little Hilary: Happy at Last? New Zealand's Family Court and the Matter of Hilary Foretich

Penn State International Law Review Volume 9 Number 2 Dickinson Journal of International Law Article 9 1991 Little Hilary: Happy at Last? New Zealand's Family Court and the Matter of Hilary Foretich Suzanne McGrath Dale Follow this and additional works at: http://elibrary.law.psu.edu/psilr Part of the Comparative and Foreign Law Commons, Family Law Commons, and the International Law Commons Recommended Citation Dale, Suzanne McGrath (1991) "Little Hilary: Happy at Last? New Zealand's Family Court and the Matter of Hilary Foretich," Penn State International Law Review: Vol. 9: No. 2, Article 9. Available at: http://elibrary.law.psu.edu/psilr/vol9/iss2/9 This Note is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law eLibrary. For more information, please contact . Little Hilary: Happy at Last? New Zealand's Family Court and the Matter of Hilary Foretich' A Kikuyu proverb tells us: "When elephants fight it is the grass that suffers." Here, the grass is a little girl. . .She is the principal figure in a drama of appalling proportions, no matter 2 what the outcome. Hilary Foretich was eight years old in 1990.3 Since before she was born, she was a bone for her parents to quarrel over, most of the time in legal proceedings, frequently -inthe public press. 4 Because various adults deemed it to be in her best interests, Hilary has been examined in detail by an assortment of physicians and psychologists," visited with her father irregularly and under awkward conditions,' and was totally separated from both parents for two and a half years while being transported around the world under an 7 alias. In February, 1990, Hilary was discovered in a new jurisdiction, New Zealand, which also claimed to act in her best interests. 8 New Zealand's definition of what constitutes a child's best interests includes declaring all Family Court proceedings confidential and making it illegal to report them. 9 The court moved to maintain Hilary's status quo by awarding her grandparents, William and Antonia Morgan, temporary custody and ordering them not to leave the court's jurisdiction and moved to protect her legal interests by appointing a lawyer to act for her."0 In addition,'the court moved to I. This Note was originally written in June, 1990, after Hilary Foretich was discovered in New Zealand but before the Family Court adjudicated her case. 2. Morgan v. Foretich, 546 A.2d 407, 413 (D.C. App. 1988). 3. Id. at 408. • 4. Elson, A Hard-Case of Contempt, TIME, Sept. 18, 1989, at 66 [hereinafter Elson]. Efforts Grow to Shield Girl in Custody Battle, New York Times, Feb. 27, 1990, at A 19, col. I. Hilary was born a week after her parent's hastily arranged, five months long marriage broke up. 5. A Mother's Tale: Why I'm Taking no Chances with the Courts, U.S. NEWS & WORLD REPORT, June 13, 1988, at 30 [hereinafter A Mother's Tale]. 6. Morgan v. Foretich, 546 A.2d 407, 409 (D.C. App. 1988). 7. Cropp, A Life of Strangers and Seedy Motels, New York Times, Feb. 26, 1990, at A12, col. 3. 8. Berringer, Child's 15,000-Mile Odyssey In a Troubling Custody Case, New York Times, Feb. 25, 1990, at 22, col. 5. 9. Elson, supra note 4, at 19. 10. As Far Away as You Can Get, TIME, March 5, 1990, at 20; Elson, supra note 4, at 19. DICKINSON JOURNAL OF INTERNATIONAL LAW [Vol. 9:2 protect Hilary's privacy interests by issuing an injunction forbidding the showing of a television documentary about her case. 1 Because the New Zealand Family Court appears to have been the first legal authority to be truly concerned for Hilary Foretich's welfare and best interests, this Note contends that New Zealand should not be obliged to return Hilary to the jurisdiction of United States courts. This Note also contends that the ultimate disposition of custody and visitation rights should be the prerogative of the New Zealand court and that prior or pending United States orders should not necessarily be considered binding on that court. The States signatory to the present Convention, [f]irmly convinced that the interests of children are of paramount importance in matters relating to their custody. . .[h]ave resolved to conclude a Convention to this effect ....11 The protection of children and the regulation of matters relating to their custody have been of increasing interest to the international legal community. In 1961, the Ninth Session of the Hague Conference on Private International Law developed a convention intended "to establish common provisions on the powers of authorities and the law applicable in respect of the protection of [children]."'" A replacement for a convention signed in 1902," the 1961 document considers which judicial or administrative authority shall have the right to exercise power over a child's person or property. 15 By 1980, "the increasing number of cases where children have been improperly removed across an international frontier," caused parental custody and visitation rights and the welfare of children to become matters of major concern to the international community.'" The Council of Europe developed a convention concerning child custody in the spring of 1980.17 The Fourteenth Session of the Hague Conference on Private International Law followed suit in the fall of the same year with a convention on international child abduction.'" Both Conventions call for reciprocal recognition of a state's custody and visitation orders and for the cooperation of signatory states 1I.Parents See Girl in Custody Fight, New York Times, March 19, 1990, at A]6, col. 6 [hereinafter Parents See Girl]. 12. Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501 [hereinafter Hague Convention]. 13. Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants, opened for signature Oct. 5, 1961, 658 U.N.T.S. 145. 14. Id. art. 18, at 153. 15. Id. arts. 1-11, at 145-59. 16. European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children, opened for signature May, 1980, 19 I.L.M. 273 [hereinafter European Convention]. 17. Id. 18. Hague Convention, supra note 12. Spring 1991] LITTLE HILARY 413 in enforcing those orders within their own boundaries, including returning an abducted child to its custodial parent. 19 The Hague Convention stresses a preference for the voluntary return of an abducted child,2" and where a return must be ordered, the welfare of the child is an aspect of major concern. Guidelines include consideration of the length of time a child has been removed from its custodial parent, the child's preferences, and the situation awaiting the child's return. 2 Both Conventions make provision for enforcing rights of access (visitation). The European Convention provides for enforcement of access orders on (...truncated)